As I mentioned last week, I decided to revise my Dealbreakers nonfiction book. As I started making notes for the revision, I realized the topic of deals, contracts, and publishing legalities has gotten so complex, I’ll probably get several books out of it.

Wrapping my arms around a topic this vast is intimidating enough. Often, I will focus on current events as my hook.

But I realized that I needed to do something right up front: I need to discuss the importance of contracts.

I know to some of you that sounds silly. Traditionally published writers expect to get a contract from their publisher. Hybrid writers expect the same thing, when they have a publisher other than themselves.

Indie writers often have no idea what contracts are or why they’re necessary.

In fact, all three groups rarely think about contracts at all.

Before we get to the meat of this topic, however, I need to do two things. I need to give you the standard disclaimer, and I need to let you know where I’m coming from.

Disclaimer: I am not a lawyer. Nothing in this blog or on this website should be take for legal advice. Period.

Where I’m coming from: If you haven’t done so, go to “Introductory Remarks” and look at the definition of terms. That will tell you the perspective of this blog post. If you try to comment about something that makes it clear you haven’t looked at those terms, I will delete your comment.

Okay. That’s done.

Over the years, I have become fascinated with writers’ attitudes towards contracts. Writers are so very cavalier about them. More than fifteen years ago, a former editor of mine (for a major traditional publishing house that has since vanished) told me that most writers she worked with looked at their 25-page traditional publishing contract like this:

The writer closely examined the lines covering the advance, and the advance’s payout schedule. The writer eyeballed the royalty rates, and the writer glanced at the deadlines.

That was it. Out of 25 pages, the writer looked at very little else.

I did not believe my editor. I really believed most writers were not that stupid.

I’m here to tell you now: she was right. Most writers are that stupid. Most writers pay no attention to their publishing contracts at all until some term bites them in the ass. Then the writer tries to figure out how to get out of it, not realizing that they got themselves into it by signing the contract without examining it.

Hybrid writers are learning the truth of that one. Many hybrid writers want to reprint their backlist. In the early days of epublishing, a lot of hybrid writers simply put their backlist titles up as ebooks, only to receive a cease-and-desist notice from the book’s traditional publisher. Writers stopped uploading without permission pretty quickly as the word got out that traditional publishers didn’t like that.

It helped that traditional publishers started epubbing their own backlists.

Indie writers have yet another problem with contracts. Indie writers believe they don’t need any. I’m sure many indie writers have already left this blog post, because they think it doesn’t apply to them.

Hey! Indie Writers! You’ll benefit more than any other group from this post!

There. Do you think I got their attention?

Writers in general—traditional, hybrid, and indie—do not respect their contracts. Writers don’t understand contracts, and rather than learning what a contract is and why it exists, writers let “their people” handle the contracts.

For generations now, “their people” are usually their agent and the employees of their agent, which, as you will see in future posts, is a truly terrible idea. If you want “people” to handle your contracts for you, hire people for whom contracts are a specialty. Namely, a literary lawyer.

But let’s talk about contracts themselves, shall we? Most writers expect someone else to generate a contract. Most writers want their traditional publisher or their agent or their service provider or their mortgage broker or whomever they’re in business with to provide them with a contract. Most writers have no clue that they can generate their own contracts.

Yes, you, traditional writers! You can go to your publisher with your own contract in hand. I personally know several writers who do this. That puts the contract negotiation phase on equal footing. The writer has their 10-page contract; the publisher has their 25-page contract.

The document the two end up with is neither of those contracts. It’s something unique to that particular negotiation, and probably won’t be replicated in the writer’s next negotiation with a different publisher.

There, traditional writers, did I just blow your minds? Because it certainly blew mine when I started editing over 25 years ago and some writers provided me with their standard contracts for short fiction. I didn’t know that was possible, because, at the time, I did not understand contracts or contract law.

Indie writers, I know many of you are wondering why you need a contract at all. Technically, in many states in the U.S., you don’t. But in some states, you do.

There are other, more practical reasons to have a contract, and I will get to those after I define what a contract is.

A contract is a legally binding agreement between two or more parties.

As with anything in the law, however, that simple statement above isn’t the whole story. In order for a contract to be valid, it must have all of the following elements.

Offer

Acceptance

Valid (legal and valuable) consideration

The parties must intend to enter an agreement with each other

The parties must have the legal capacity to act in this matter

The parties must give genuine consent to the terms

The agreement must be legal

I’m going to start with the simplest things to explain, and then I’ll get to the harder ones.

With that in mind, let’s start with #7:

The agreement must be legal

You and I can enter an agreement to commit a crime. However, that agreement, even if it fulfills points 1-6 above, is not valid. There are a million ways to enter into an “illegally formed” contract, and most of them do not apply to publishing, so I am going to skip them. If you want to see a list of possible items that make an agreement illegal, go here:

#7 generally does not apply to publishing contracts, but the rest of the list does. So let’s move to #5

The parties must have the legal capacity to act in this matter.

Legal capacity has a lot of definitions, and we’re not going to get into most of them. Generally speaking, the person who enters into a contractual agreement must be an adult, in full command of their mental faculties, and able to understand what they’re signing.

If one of the parties is a corporation, then the person who enters the agreement for the corporation has to have the power within the corporation to make binding legal agreements.

This one little fact is why agents cannot sign a contract for their writers, unless the writers give the agents power to do so under the law, with another agreement called Power of Attorney. Even then, the ability to sign such documents would have to be spelled out in the Power of Attorney agreement.

All parties to a contract need to have the legal ability to represent whatever is in that contract. For example, I cannot sign a valid contract selling your novel to a major publisher. I do not control the rights to your novel. I also cannot scan and upload your book to, say, Amazon. When you upload a book to Kindle, you warrant—by agreeing to the terms of service (a contract)— that the book is yours or that you control the copyright to that book. Since I do not control your copyright, I would not have the legal capacity to enter into an agreement for that book.

Speaking of terms of service (which is a contract, by the way), let’s go to #6:

The parties must give genuine consent to the terms

Have you ever read through a terms of service (TOS) agreement? No? And yet you’ve clicked accept? You have to go through pages and pages of text, plus an offer to have the TOS sent to you via email (or regular mail), before you can click accept. Back in the old days (like ten years ago), it was easier to hit accept on a TOS. The very ease back then made it possible for attorneys to argue that there was no “genuine consent.” (This kind of thing fell under consumer protection laws, usually.)

That’s why TOS have become impossible to ignore. You have to willfully not read them, and go through a bunch of notices before you click accept. Then it’s your own damn fault if you agreed to something you didn’t read.

Genuine consent in most written contracts comes in the form of a signature with a date attached. Sometimes that signature needs to be witnessed and sometimes it needs to be notarized to show its validity.

But on some contracts—particularly verbal contracts—all it takes is a handshake to give genuine consent. Each state’s laws differ on this point. Some states do not honor verbal agreements. Others do. If one of the parties in your contract is from one of those states, then you could be agreeing to something you think you’ve mentioned casually over the phone.

This one fact alone is why I do not conduct telephone negotiations with anyone on any project for any reason.

People who want to negotiate with me must do so by letter or, these days, by email. I print those emails and keep them as work product for any agreement that we come up with, or don’t come up with, as the case may be.

Now we’re getting to the parts of a contract where I’m feeling constrained by the simplicity of this blog. For every sentence I write, I have paragraphs of “but if this happens, then that could happen” that I could add to this document. I’m not going to.

If you don’t understand what I’m writing here, there are many, many, many websites that can help you understand the essentials of contracts, probably better than I ever could. Google contract basics.

Intent in this instance is really difficult to explain. When you upload a book to ebook site, you are intentionally entering into an agreement with that site. The TOS defines the legal relationship you have. Most writers don’t think about that intention, but it exists.

It also exists for you readers. When you pay money for an ebook, you’re licensing the ebook to use on your ereader. You are renting that book. You have entered an agreement with Amazon or Barnes & Noble to rent that book, and those entities may revoke your right to rent that book for reasons listed on their websites. You signaled your intent to rent that book by your actions, not necessarily by clicking agree to a TOS or by signing a document.

This is a very complicated part of the law, and of course, it varies state to state, and sometimes from community to community. If you want to know more, then do some digging on your own.

For our purposes, however, you will be dealing with a written document. You would not be negotiating a document to work with someone if you did not intend to work with them. Therefore, this seems like a small point.

Trust me, it isn’t. And it has become more confusing for indies than it has for traditionally published writers, because of things like Terms of Service.

Now that I’ve muddied the waters with the complex legal wiggle-waggles, let’s go to the most basic part of contracts.

Every single contract needs #1: An Offer. That offer must be #2: Accepted. Tied to that offer is #3: Consideration.

I know most of you don’t know what consideration is, so let’s explain it first.

Consideration

What makes a contract special is that it is binding on both parties. In return for making the agreement, each party needs to get something. That something has to have value to both parties.

In many, many cases, consideration has a monetary value. But not in all cases. Essentially, consideration boils down to the very reason each party enters the contract.

Writer A wants to have a novel published.

Publisher X wants to publish that novel.

Writer A and Publisher X decide to exchange services. Writer A writes the book; Publisher X publishes the book. Even with no cash changing hands, both parties have received consideration—in the form of work, time, expenditure, and so on. Both parties have gotten something they value out of the agreement.

I listed them separately. Many descriptions of contracts list them together. Because a contract does not exist without both.

I can make you an offer for your book. If you do not accept my offer, we do not have a contract.

It’s that simple.

However, once the offer is accepted, we have a valid contract. Some people mistakenly believe the contract is not valid unless money changes hands. Not true.

The contract becomes valid and binding once the agreement is made.

Let me give you a real world example that, fortunately for the other party involved, I did not go to court over.

A representative of a brand new science fiction convention contacted me via email, and offered to pay all my expenses in exchange for my appearance at that particular science fiction convention.

I agreed also via email, and printed out the letter, along with my reply.

These email letters, along with email acceptances, are a common way to do business with a science fiction convention. Those email letters are a contract.

Offer made. Offer accepted. Consideration would happen at the convention itself—for both parties.

A short time later, I received a form email telling me that the organizers had overbooked the convention and they were no longer going to pay any of my expenses, even though they still wanted me to appear at the convention.

I had several choices. They had breached a contract. Our email exchange would serve as the binding contract.

I could have shown up at the convention and insisted on enforcement. I had many other options as well, and believe me, I thought about them. This was extremely unprofessional behavior on the part of the organizers, and it called into question habits of a lifetime for those of us who’ve appeared at conventions.

I was not the only science fiction professional who received the form email. Several other science fiction professionals did as well. We discussed taking action. Instead, the only action we took was to inform the other professionals who had not received the form about the breach of contract. If those professionals had shown up at the convention, they might not have had their expenses paid.

The professionals needed to know that before they made travel plans.

Nothing happened, because the convention imploded shortly thereafter and will not be held. So there will be no appearances and no all-expenses-paid guests. Which is probably good for the organizers, since they had several existing contracts that they were no longer planning to honor.

Most of us think of contracts as those 25-page documents I mentioned above. But we deal with contracts each and every day. Some are implied contracts, and others are actual paper documents. That email exchange was a contract.

I do not have a written document with the woman who cleans my house. She shows up once a week at a designated time, and I pay her every single week. We made that agreement verbally. We have a contract for cleaning, and it is binding.

Contracts are extremely important. They define the relationship between the parties. Written contracts are the best, because each party can examine the terms, think them over, and decide whether or not those terms are acceptable.

You and I might discuss a proposed business plan over the phone. I might think we decided to have you do all the publishing work, from designing the covers of a book to writing cover copy, and you might think we decided that you would write the book and I would publish it. A simple misunderstanding that could happen in conversation would be solved if we had a written agreement.

With a written document, you can examine the terms and see if they’re feasible. But you must examine those terms before you accept the offer. Once you’ve accepted, the contract becomes binding.

It’s easier to take legal action over a broken contract if that contract is in writing. Taking legal action does not mean you have to go to court. You can have an attorney contact the other party, and let them know they are in breach of the contract. That’s very easy to do when the terms are spelled out.

I can’t tell you how many times I’ve taken part of a publishing contract and used that section to show the publisher that they were in breach of the contract.

Once someone is in breach, by the way, they usually have the right to cure. Meaning, if they do something wrong, they have the right to fix that problem within a reasonable amount of time.

I keep catching one of my traditional publishers in a breach, and the bastards keep curing. I want them to breach the contract completely so that I can get my book back. They haven’t done it yet. (Sigh.)

Three last points about contracts.

First, both parties have a stake in the contract. You don’t have to sign something as is. And, in fact, you shouldn’t. You should negotiate. Most writers never do that. I know, I know. You don’t know how to negotiate. I have a book on that called How To Negotiate Anything. If you don’t want to get the book, look at my blog posts on the topic, starting with this post.

However, while all parties may expect a fair benefit from the contract (otherwise courts may set it aside as inequitable) it does not follow that each party will benefit to an equal extent.

Traditional publishing has made this one little fact the gold standard of their contracts. Yep, writer and publisher benefit from a traditional publishing contract. Who benefits more these days? The publisher. And I aim to stop that with this series of blogs.

I can’t stop publishers from asking for more than they deserve. I can, however, dream that I can stop you from giving them more than they deserve.

That’s where the Dealbreakers part of this will come in, down the road.

Finally (third), indie writers, you need to define your relationships—all of your relationships, from your relationship with your cover designer to your copy editor—with contracts. You’ll probably have to generate those contracts yourself. I’m looking for a good resource book or website right now for that, and if I find it, I will list it here.

But for the time being, write up an agreement in plain English, listing an offer, the acceptance, and the consideration. You can always change the agreement (with the approval of both parties) down the road. But cover your asses.

Because, really, covering your ass is what a contract is all about.

I’m doing a long series again. This one is on contracts and dealmaking/breaking. It will include clauses to watch out for, information on agents, how to hire an attorney, and more.

I will be digging into bad contracts and typical terms of other contracts. If you have something that you believe will help, see the introduction blog for more information on how to get it to me.

As I mentioned in that blog, this topic discourages the hell out of me, because I see so many writers sign away their life’s work. I’d like to stop that, and the only way I know how to stop it is to blog about it. But honestly, it puts me in a dark place.

So if you get a benefit from this blog or this series, please consider supporting it. You can support it with a cash donation or by forwarding it to writers.

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I enjoyed this and found it interesting. My publisher and I had an agreement for semi annual royalty payouts, HOWEVER tucked away in my last royalty payment schedule was a little note that essentially said “and by the way we will henceforth only pay out royalties to you when the amount per title reaches $X amount, minus the contractual clawback amount to handle returns, which will be paid on the NEXT roytalty date and or when the roytaly amount again reaches $X.” Because this company publishes local and regional books, which are not big sellers, and they did not provide us with a maximum number of months that they can hold our royalties, it could be years or even decades before we could theoretically see the money due us per the original contract. On E-Books, because the books generate such a small amount we may never generate enough to qualify as a payout. I aslo wanted to know how this impact tax reporting (are they reporting what we earn but have not been paid, if so we are paying taxes on money we haven’t received, or are they reporting when they disburse, in which case many of us who follow IRS guidelines report the income that we have earned in a given period per their royalty reports. When I spoke with the publisher about this, she said, and I quote “Well you are ahead of the game on this because most of our authors don’t read what we send them.” AND I pointed out to her that in the event that they file Bankruptcy, the authors will NEVER see their royalties that have been held for years. That kind of took the wind out of sales “You seem to more savvy than most of our authors.” No, I expect answers.

Your contract should determine when they pay royalties, not that little “note” in the royalties. If they want to make a change like that, they need to amend the contract. Just sayin…:-) Good job by you! (Amazing how she knows she can slip this by most authors…)

Thank you so much for doing this, Kris. I can’t wait until you release the new edition of Dealbreakers. The old one was an eye opener for me.

As a question- is it possible that you can include sample contracts as an appendix for your book? Especially translation and adaptation (film, TV, dramatic etc.)? These don’t have to be actual ones, although I would love to know what to expect from modern publishers in their entirety.

And writers can draft their own contracts? That’s a relief. I thought it was always one sided.

I’m leery about doing sample contracts, Sohan, because I’m not a lawyer. I’d have to partner with someone for that. I’m thinking about it, but I might just point you to good websites/other books. (And thanks for the kind words!)

As a retired librarian, let me put in a word for your local library. First because many will have books with generic legal forms and contracts you can look at as starters. Writers are small businesses and there are also a number of books available that translate copyright and other legalese into a close approximation of common English. If they don’t have books that have what you need, many are willing to buy them on the principle that there are others in need who aren’t as forward as you about asking. Because of the way the economy was while I was buying reference and nonfiction, I tried to find books that would help people make money with the things they had or knew how to do.

If you want to be sure about getting a form that will cover kinks in your state laws, there are a number of sites that will let you build and store your contracts on their servers. Most of them will cost you and some are vaguer about what that cost might be. Still, if you’re diligent you could probably get samples you can work from for free.

I’m a former attorney, continually cycling through the 12-step program for recovering from that–and I’m really into avoiding litigation. Email agreements such as described in this post really bother me. I don’t disagree with your description of them as potentially meeting an offer, acceptance, consideration test… but it’s very easy to have one party think the deal is game-set-and-match and the other party thinking that these are the preliminaries to reaching an agreement.

What I urge is being very clear with one another about where you are in the negotiating process… and what the end (contract) might look like in procedural terms. Say the equivalent of: Let’s try to get down in an exchange of emails what we want to put in our agreement… then let’s summarize it before we agree and make it binding.

I think there are also issues, state-to-state about what kind of formalities (e.g. signatures) are required for what kinds of contracts.

Most sf conventions use some form of agreement, but many, many, many others only use e-mail and letter. Most professional writers have gone to dozens of conferences based only on those kinds of emails. So it is customary in the industry. All of the professionals were advertised as the GoH at the conference, with our bios and the fact that we would appear. So it was considered final in all instances, by all parties involved.

In my case, there was more than one e-mail on terms and such, so there were negotiations and a final agreement, all via email. I don’t know about the other professionals.

Yes, there are state-to-state differences on what constitutes a contract, as mentioned above. Even this kind.

Great series you’ve got going here, and very timely for me personally as I’ve just started a co-writing project with an author friend. The writing itself is proving fun and easy but both of us are a little nervous about the long-term legal agreement side of the equation. Any advice or thoughts for co-writing contracts? Do you think it’s important to spell out the dynamics of who does what during the writing process, or is focusing on publication, promotion, and so on sufficient? Thanks again for sharing the benefit of your experiences.

Yes, Justin, you need a contract between the two of you, covering every aspect of the relationship, including the financial portion, which you did not mention above. I know there are collaboration agreements all over the web. You might look at some of the legal sites, like Nolo.com for help with a basic. It’ll assist you with the things you wouldn’t normally consider.

Remember, you need to design the contract to cover things that go right as well as things that could go wrong. Best and worst case scenarios.

That’s a good way to look at it. We’ve both been around just long enough to be paranoid so I think we’ve been focusing more on what will happen if things go sideways. Thanks for the reminder to spell out how we’ll handle things going well too.

“I could have shown up at the convention and insisted on enforcement.”

While you’ve written an interesting post, this isn’t correct. Although a contract is established when you accept the offer, you’re also expected under the law to mitigate your damages. If they’ve given you enough time to cancel your travel arrangements, then you wouldn’t be able to show damages or demand anything.

I wrote an entire book on negotiation, but y’know, I just assumed everyone knew that. Well, duh. I’ll add it in. Sometimes this stuff is so basic for me that I don’t realize most people don’t know it. Thanks!

There are times when a principal wants to negotiate through an agent. The principal can refuse to ratify a deal the agent has reached. That distance can be used for leverage. I have been used as an agent in negotiations. Once, I counseled a client to refuse a deal I made. Told him we could do better in the next round. We did.

Different cultures have different expectations regarding contracts. Americans build business relationships contract by contract and the relationship is never better than the performance on the last contract. In my own experience, Brazilians build personal relationships first and then contract; to Brazilians, the letter of the contract is less important than the trust built in the personal relationship. I have knowledge of an instance in which one Brazilian told another that he lost money on their current contract. The second replied (loosely translated), “Don’t worry. I’ll make it up to you on the next contract.” I also know of a Brazilian family that bred race horses and wanted to import them into the US. Rather than search for an American lawyer for their business, they chose to wait until a Brazilian they knew graduated an American law school!

Exactly. I used lawyers/agents many times to see how far the other party would go in the negotiation (meaning, how much would they give up?). Sometimes it worked to my benefit, sometimes not. But that’s a hole in the Negotiate book that I need to plug at some point. Thanks!

I was really astounded to discover when I bought my house that no one expected me to read the mortgage documents. Not only that, they were making it difficult for me to read them! I finally told the mortgage guy that if I didn’t have the paperwork at least 12 hours before the signing that I would walk away from the deal and he sent me copies, but at the signing, both the real estate professionals were really surprised that I had already seen the paperwork and even more surprised when I insisted on reading every page of the document I was actually signing. Seriously, thirty years of my life I would be paying those bills and they didn’t think I’d want to know every single bit of information that I was committing to? Nope, they didn’t. They told me, in fact, that no one reads their mortgage paperwork. So strange to me.

Yeah, Dean and I angered the mortgage “professionals” by doing that on a refinance. We slowed the process, and reread everything at the signing. And lo and behold, discovered they had “accidentally” slipped in three documents with things that we specifically excluded, like upping the interest rate after 3 years. Ooops, they said. Yeah, right. Ooops. This was in the height of the mortgage insanity in the early 2000s. I wonder how many people “accidentally” signed something they didn’t agree to.

I have yet to sign a writer’s contract, but very much appreciate this series you are doing. Because of you I now know that even Createspace and all of the indie publishing venues have contracts that I need to pay attention to.

Because of your posts on contracts I realized two things:

First, that because a site like Createspace, or ipage, or (insert any popular business website) has a standard TOS that EVERYBODY signs, I never bothered to read the TOS because, hey, everybody signs them so they must be okay.

Second, I never realized how many TOS I agree to on a regular basis without even glancing at them. Looking back at the transactions that I’ve done—and every one has a TOS—I just wanted to get ‘er done without having to read all that small print.

I feel like an idiot. From this day forward I will take the time to read what I am signing no matter how painful.

But that brings up a question. With a standard TOS, say with Createspace, I assumed that there is little or no negotiating room, and because everyone does sign their TOS, the TOS must be fair to both parties. Am I wrong?

BTW, thank you Kris for the effort you go to help us. You and Dean have made a huge difference.

Well, no, the TOS isn’t fair to everyone on some sites. The only negotiation you have on many sites is walking away. So, try to negotiate something you hate. If you can’t, then determine if the service is worth it to you to use, and plug your nose or walk. Good questions.

Unfortunately, it’s not just writers who have a cavalier attitude toward contracts until they’re bitten in the ass. I’ve seen otherwise intelligent professionals do the same thing, then bluster and moan about what the contract was supposed to say or what they thought it said, and figure their lawyer should just be able to get them out of whatever jam they got themselves into.

A good rule of thumb: If you don’t understand a contract, pay a little in attorney’s fees now to have a lawyer explain/negotiate for you, or pay a whole lot in attorney’s fees later trying to dig yourself out of a hole.

Thanks, Annie. I can tell. 🙂 And let me add one thing to your rule of thumb: sometimes the lawyer can’t dig you out of that hole. Better to plug the leak before you put water in the bucket…or whatever the metaphor is that you want to choose. 🙂

Great addendum to the rule of thumb. 🙂 Lawyers, unlike Scotty, aren’t miracle workers. If you dug that hole with your eyes open and signed your name to the shovel, a judge probably isn’t going to buy that you didn’t know what you were doing.

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